Citation NR: 9704452
Decision Date: 02/12/97 Archive Date: 02/19/97
DOCKET NO. 94-29 509 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to a compensable evaluation for postoperative
residuals of bilateral inguinal herniae.
2. Entitlement to a compensable evaluation for a hiatal
hernia with gastritis.
3. Entitlement to a compensable evaluation for asthma.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Carolyn Wiggins, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1953 to August
1976.
The issue of an increased evaluation for asthma and an
extraschedular evaluation for bilateral inguinal herniae is
covered in the remand portion of this decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his scars from his surgical repairs
of his inguinal hernias, are tender and painful. He asserts
that he has pain related to activity, and he has had to
drastically limit his activities to adapt to his
disabilities.
DECISION OF THE BOARD
The Board of Veterans’ Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp.
1995), has reviewed and considered all of the evidence and
material of record in the veteran's claims file. Based on
its review of the relevant evidence in this matter, and for
the following reasons and bases, it is the decision of the
Board that preponderance of the evidence is against the
claims for increased evaluations for the postoperative
inguinal hernias and a hiatal hernia with gastritis.
FINDINGS OF FACT
1. The veteran’s postoperative residuals of inguinal hernias
include well healed scars that are nontender, without keloid
formation. The evidence does not demonstrate that recurrence
of inguinal hernia bilaterally.
2. The evidence does not demonstrate that the veteran’s
hiatal hernia with gastritis, causes persistent recurrent
epigastric distress with two of the following: dysphagia,
pyrosis, regurgitation, or is productive of considerable
impairment of health.
CONCLUSIONS OF LAW
1. The schedular criteria for a compensable evaluation for
postoperative bilateral inguinal herniae have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1996); 38 C.F.R.
Part 4, Diagnostic Codes 7338, 7804 (1996).
2. The criteria for a compensable evaluation for a hiatal
hernia with gastritis have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991 & Supp. 1996); 38 C.F.R. Part 4,
Diagnostic Code 7346 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran's claims are "well grounded" within the meaning
of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1996). He has
presented claims which are plausible. The Board is satisfied
that all relevant facts have been properly developed. No
further assistance to the veteran is required in order to
comply with the duty to assist him mandated by 38 U.S.C.A. §
5107(a) (West 1991 & Supp. 1996).
Disability evaluations, in general, are intended to
compensate for the average impairment of earning capacity
resulting from service-connected disability. They are
primarily determined by comparing objective clinical findings
with the criteria set forth in the rating schedule.
38 U.S.C.A. § 1155 (West 1991 & Supp. 1996); 38 C.F.R. Part 4
(1996).
The Department of Veterans Affairs (VA) has the duty to
acknowledge and consider all regulations which are
potentially applicable through the assertions and issues
raised in the record and to explain the reasons and bases for
its conclusions. Schafrath v. Derwinski, 1 Vet.App 589
(1991).
These regulations include 38 C.F.R. § 4.1, which requires
that each disability be viewed in relation to its history and
that there be an emphasis placed upon the limitation of
activity imposed by the disabling condition. The provisions
of 38 C.F.R. § 4.2 require that medical reports be
interpreted in light of the whole recorded history, and that
each disability must be considered from the point of view of
the veteran working or seeking work. 38 C.F.R. § 4.10
provides that in cases of functional impairment, evaluations
must be based upon lack of usefulness of the affected part or
systems, and medical examiners must furnish, in addition to
the etiological, anatomical, pathological, laboratory, and
prognostic data required for ordinary medical classification,
a description of the effects of the disability upon the
person's ordinary activity.
Inguinal Hernia
A small, reducible inguinal hernia or an inguinal hernia
without true hernia protrusion is rated as noncompensable. A
remediable inguinal hernia which is not operated is rated as
noncompensable. A postoperative recurrent inguinal hernia
which is readily reducible and well supported by a truss of
belt is rated as 10 percent disabling. Ten percent is added
for bilateral involvement, provided the second hernia is
compensable. This means that the more severely disabling
hernia is to be evaluated, and 10 percent, only, added for
the second hernia, if the latter is of compensable degree.
38 C.F.R. § 4.114, Diagnostic Code 7338 (1996).
Scars which are superficial tender and painful on objective
demonstration are rated as 10 percent. 38 C.F.R. Part 4,
Diagnostic Code 7804 (1996).
Service medical records reveal that the veteran had three
inguinal hernias repaired in service. February 1983 private
medical records reveal that the veteran had a left recurrent
inguinal hernia. It was surgically repaired. The veteran
filed a claim for service connection for inguinal hernias on
separation from service. Service connection was granted and
a noncompensable evaluation assigned. After the veteran’s
surgical repair of the left recurrent hernia in 1983, a
temporary 100 percent evaluation was assigned. After the
veteran’s convalescence, his evaluation returned to zero.
The veteran is currently seeking a compensable evaluation for
postoperative inguinal hernias.
A VA examination in June 1992 revealed that the veteran has
some tenderness in the right testicle, more than the left.
Examination of the inguinal areas revealed no recurrent
hernia bilaterally. The incisions in the left and right
groin were well-healed. There was no tenderness, abnormality
or keloid formation. The pertinent diagnosis was inguinal
hernias with recurrence, includes 4 operations, 2 on either
inguinal area, some discomfort in the testicle.
A statement from the veteran’s treating physician, dated in
April 1983, stated that the veteran was indefinitely limited
to lifting up to 25 pounds. The veteran also submitted a
December 1990 statement from his employer that stated he was
reassigned to a shop crew where he could work within his
weight restriction.
The veteran contends that the restriction of his activity and
the limitation on lifting caused him to miss out on the
possibilities for promotion at his job.
The Schedule for Rating Disabilities (Schedule) provides
compensable evaluations for recurrent inguinal hernias.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet.App. 55 (1994). A review of the
medical evidence reveals that the inguinal hernias have not
recurred since the last repair in 1983. A compensable
schedular evaluation is not provided in the absence of
evidence of a recurrence of the inguinal hernias. 38 C.F.R.
§ 4.114, Diagnostic Code 7338 (1996).
The Schedule also provides compensable evaluations for scars
that are tender or painful. The VA examiner stated that
there was no tenderness or pain about the scar. The veteran
has asserted that he has pain with activity. This was not
noted on examination or any other medical data submitted with
the increased rating claim. Thus, a higher rating under
Diagnostic Code 7804 is not warranted.
For the foregoing reasons, a schedular compensable evaluation
for inguinal hernias is not warranted. However, the matter
of a rating on an extraschedular basis is the subject of a
remand at the end of this decision, in light of the veteran’s
contentions regarding interference with employment.
Hiatal Hernia
A hiatal hernia which causes persistent recurrent epigastric
distress with dysphagia, pyrosis and regurgitation,
accompanied by substernal or arm or shoulder pain, productive
of considerable impairment of health is rated as 30 percent
disabling. A 10 percent evaluation is warranted with two or
more of the symptoms for the 30 percent evaluation of less
severity. 38 C.F.R. Part 4, Diagnostic Code 7346 (1996).
In service, a hiatal hernia was diagnosed. The veteran had
epigastric distress which was controlled with antacids. On
service separation the veteran filed a claim for a hiatal
hernia and gastric distress. Service connection was granted
in September 1976 and a noncompensable evaluation assigned.
VA outpatient treatment records of February 1992 show that
hiatal hernia was by history only.
A VA examination in June 1992 revealed that the veteran’s
current weight was 206 pounds. His maximum weight for the
past year, was 212 pounds. There was no anemia. Motility
was mildly disturbed. There was no obstruction of the
esophagus. He had mild reflux disturbance. He had some
epigastric distress if he missed meals. He was taking
Cimetidine and aluminum hydroxide for hyperacidity. There
was no malnutrition, diarrhea, or constipation. There was
some hypersensitivity to highly seasoned foods and nuts,
which caused some diarrhea. The veteran had some excess gas
caused by highly seasoned foods. The pertinent diagnosis was
hiatal hernia with chronic gastritis in 1983, patient still
treated with Tagamet, relatively asymptomatic with treatment.
The evidence does not reveal that the veteran has two of the
following: regurgitation, pyrosis or dysphagia. He does not
have chest pain related to epigastric distress. As noted
above, these are the pertinent criteria required for a
compensable evaluation under Diagnostic Code 7346. Since the
requisite symptoms are not demonstrated, a compensable
evaluation for a hiatal hernia with chronic gastritis is not
appropriate.
An increased evaluation for a hiatal hernia with chronic
gastritis is not warranted.
ORDER
An increased schedular evaluation for postoperative inguinal
hernias is denied.
An increased evaluation for a hiatal hernia with chronic
gastritis is denied.
REMAND
During the pendency of this appeal new VA regulations for
evaluating disability of the respiratory system were
published. The new criteria for rating disorders of the
respiratory system became effective, October 7, 1996.
61 Fed.Reg. 46720 (1996).
When a law or regulation changes after a claim has been filed
or reopened, but before the administrative or judicial appeal
process has been concluded, the version most favorable to an
appellant applies unless Congress provided otherwise or
permitted the Secretary to do otherwise and the Secretary
does so. Marcoux v. Brown, 9 Vet.App. 289 (1996); Karnas v.
Derwinski, 1 Vet.App. 308 (1991). The regional office (RO)
has not had an opportunity to evaluate the veteran’s asthma
using the new criteria to determine if it would be more
favorable to the veteran.
In Bernard v. Brown, 4 Vet.App. 384 (1993), the United States
Court of Veterans Appeals (Court) held that before the Board
addresses in a decision a question that has not been
addressed by the RO, it must consider whether the claimant
has been given adequate notice of the need to submit evidence
or argument, an opportunity to submit such evidence or
argument, an opportunity to address the question at a
hearing, and whether or not the claimant has been prejudiced
by being denied those opportunities. In this instance the
veteran has not been given a copy of the new criteria or an
opportunity to present additional evidence which might be
relevant. Due process requires that he be afforded notice
and an opportunity to submit additional evidence.
The veteran was lasted examined by the VA in June 1992 to
determine the current severity of his asthma. The veteran
should be afforded a current examination to determine if his
asthma has increased in severity under both the new and old
regulations. The veteran’s claim for an increased evaluation
for asthma must be remanded in order to afford the veteran
due process and to insure adequate development of the claim.
As for the claim for an increased rating for inguinal
hernias, the veteran submitted a December 1990 statement from
his employer that stated he was reassigned to a shop crew
where he could work within his weight restriction. The RO
has yet to consider the applicability of the provisions of 38
C.F.R. § 3.321.
The VA has a duty to assist the veteran in the development of
all facts pertinent to his claim. 38 U.S.C.A. § 5107 (a)
(West 1991 & Supp. 1996); 38 C.F.R. § 3.103(a) (1996). The
Court has held that the duty to assist the veteran in
obtaining available facts and evidence to support his claim
includes obtaining pertinent evidence that applies to all
relevant facts. Littke v. Derwinski, 1 Vet.App. 90 (1990).
This duty also includes providing additional examinations by
a specialists when recommended or indicated. Hyder v.
Derwinski, 1 Vet.App. 221 (1991). Accordingly, this case is
REMANDED to the RO for the following actions:
1. The RO should obtain the names and
addresses of all medical care providers
who treated the veteran for asthma since
June 1992. After securing the necessary
release, the RO should obtain these
records.
2. The RO should schedule the veteran
for a VA examination, in order to
determine the current severity of the
veteran’s service-connected asthma. The
claims folder should be made available to
the physician for review in conjunction
with the examination. All necessary
tests and studies, including pulmonary
function tests, should be conducted and
the results placed in the claims folder.
The examiner is requested to answer the
following questions: Does the veteran
require intermittent or daily inhalation
therapy? Does he require oral
bronchodilator therapy? Does he require
inhalational anti-inflammatory
medication? How often does the veteran
visit a physician for required care of
exacerbations. Does his asthma require
intermittent courses of systemic
corticosteroids? If so, how often? Does
the veteran have more than one attack of
bronchial asthma per week with episodes
of respiratory failure, or require daily
use of systemic (oral or parenteral) high
does corticosteroids or immuno-
suppressive medications?
3. The RO should consider whether the
appeal for an increased extraschedular
rating under 38 C.F.R. § 3.321 for
bilateral inguinal herniae is an
exceptional case. All appropriate
action/documentation should be
undertaken.
4. After the development requested above
has been completed to the extent
possible, the RO should again review the
record. If any benefit sought on appeal,
for which a notice of disagreement has
been filed, remains denied, the appellant
and his representative should be
furnished a supplemental statement of the
case that includes all pertinent law and
regulations, including the new rating
criteria under Diagnostic Code 6602 and
given the opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
M. SABULSKY
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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